Islamic marriage and divorce

At CFLP we deal with English civil law, a combination of statute and case law (judicial decisions) which informs the advice we give clients and the way we approach cases. For many people the English legal system is only one aspect of the laws governing their family life; the other being the laws prescribed by their own religious beliefs and cultural practices.

We thought it would be interesting to have a brief look at how the court treats religious laws and organisations. For this blog we will take a look at Islamic family law. Next week we will take a look at the position for those of the Jewish faith. We must caveat this blog by explaining that we are experts in English law, not the sharia law we discuss below, so please excuse any inadvertent errors.

A recent Panorama programme examined the operation of sharia courts in the United Kingdom from the perspective of women trying to obtain Islamic divorces. These organisations have been set up to dispense advice and judgments according to sharia principles, and claim the power to issue divorce to couples married according to Islamic law. There are around 85 Sharia councils operating in the UK, but there are different schools of Islamic thought so the principles applied in the councils vary widely.

The first thing to point out is that an Islamic marriage celebrated in this country is not generally recognised under English law. Only civil marriages are recognised. To this end some mosques hold licenses to conduct civil weddings. Likewise an Islamic divorce (Talaq if pronounced by the husband, Khul if sought by the wife and granted by an Islamic judge) pronounced in this country is not recognised by English courts. The effect of non-recognition is that a couple married only under Islamic law only will be treated as cohabitants under English law with the resulting limited financial remedies.

In certain very limited circumstances Islamic marriages may be recognised, and two recent cases have looked at exactly that point.

In the case of MA v JA and the Attorney General (2012) the couple made a successful application to have their Islamic ceremony declared valid under English law. Although it did not comply with the requirements of the Marriage Act 1949 (the law setting out what constitutes marriage), the ceremony was held to be “of the kind” contemplated by the legislation, so the judge allowed the Islamic only ceremony to be declared a valid marriage under English law.

The opposite result was decided in the case of El Gamal v Al Maktoum (2011) which featured a member of the ruling family of Dubai. Here an Islamic ceremony was found to have taken place, but at it was done secretly, with no written evidence, and would be unlikely to be recognised as valid in some Muslim countries, the court decided it did not amount to a marriage capable of recognition as such under English law.

Each case will turn on its own facts and a specific application must be made in each case for a declaration.

The position changes for couples married under Islamic law overseas. If an Islamic ceremony is valid in the country in which it took place and in which the couple were domiciled when it was celebrated, an English court will consider it valid. That means a couple with a valid overseas Islamic marriage can apply for divorce in the English court. The court also recognises Islamic divorces which have been validly pronounced overseas. In the case of K v K (2007) the High Court upheld the validity of a Talaq divorce pronounced by the husband in Pakistan even though the wife was not made aware of it. Under Pakistani law the Talaq divorce was valid as it complied with procedural requirements, and it was irrelevant that notice was not given to the wife.

This situation is a strange one because overseas Islamic marriages and divorces are generally recognised by the English courts, but domestic ones are not unless they also fulfil the criteria for a valid marriage imposed under English law. Clearly there is a policy reason for this, in that we cannot have parallel legal systems in this country. The only valid system in respect of marriage and divorce in England is the English civil one, but it can leave people who consider themselves validly married under Islamic law in this country without the financial remedies they would expect from the English legal system.

English law and Sharia law differ markedly on the approach to financial claims following divorce, both capital and income aspects. English courts will give consideration to the cultural background of the couple but will not apply sharia principles to the financial arrangements for a divorcing Muslim couple.

Sharia law also makes provision for children’s arrangements which often conflict with the approach of the English courts. For example, some Islamic schools of thought say all children over the age of seven should be brought up by their father; while other schools say girls should remain with their mothers. Nevertheless, in the English courts a child’s welfare is the paramount consideration when children’s arrangements are being decided, and although cultural factors are important, an English court’s view of the best interests of the children may not necessarily correspond with Islamic principles.

If you have any questions about how the English courts will deal with any religious aspect of your case, please give Adam, Gail, Sue or Simon a call on 01223 443333.

*This blog is written for informational purposes as a free public resource. Nothing in this blog or elsewhere on this website should be construed as legal advice. Although we welcome discussion, please note that CFLP is unable to give legal advice in response to comments left under this article.

Join the discussion 9 Comments

  • Taima Pizey McDonald says:

    Hello,
    I have spent many hours online with regard to how Islamic divorce is handles, my daughter entered into an Islamic marriage just over two years ago BUT the Nikah ceremony was NOT registered and my daughters ( now estranged ) ‘ husband ‘ will NOT give her the Nikah certificate or indeed a copy. He was ( may still be ) already married by British Law to a woman who now resides in Portugal.
    He married the woman as a means of gaining his British visa, ( his brother who resides with him in Croydon London has also married his British partner in order to ensure his British visa), my daughter at the time of the ceremony was UNAWARE that a ceremony had been organised and only found out when she arrived at her then partner’s home for a visit.
    She was pregnant with my grandaughter who is now almost two years old and her estranged partner did not want to bring shame upon his family because my daughter fell pregnant before the ceremony took place.
    My daughter now also has a little boy who is almost a year old with her estranged partner HOWEVER she has NOT had sexual relations with him since the time of her little boys conception.

    My daughter is now FRANTIC because she no longer wants to be ‘ married ‘ to her estranged ‘ husband ‘ but he is using intimidation, threats of taking the children away from her, etc.

    My daughter is receiving benefits from the state BUT she has supplied almost everything that my grandchildren have, ( yes my husband and myself have bought things for her and the children too ) but for the most part my daughter ensures that her children come first at all times.

    She needs help but feels as if she is not being heard and that she knows that she entered into the Nikah ceremony while she was in a seriously vulnerable state of mind not only with regard to her pregnancy but also because of her age, the fact that she along with her sister, brother and myself are all survivors of severe domestic violence and have had to move more than once to escape constant interference by my abusive ex husband.

    What should my daughter’s next step be?

  • Adam says:

    I’m married with a daughter but not uk registered but islamically wev done nikkah but she won’t let me c my daughter. Is nikkah register automatically with uk law.please help

  • Wayeed Hanif says:

    Hi,
    I was forced into marriage in Pakistan in 2010 and my wife has come to the uk on a spouse visa. At present she does not have indefinite leave to remain and my family will be applying for her uk residency in 6 months once she has been in the country for more than 2 years. I have not registered the marriage in the uk and the marriage has broken down n i have given my wife talak (Islamic divorce) do I still need to apply to the English courts for a divorce or am I free to move on?

  • cflp says:

    Hi Wayeed
    I’m sorry to hear about your circumstances. I’m afraid we can’t give specific legal advice on the internet, as legal advice must always be given in full knowledge of all the circumstances. Please do give us a call if you would like to make an appointment. Alternatively you may be able to get some free legal advice from the Citizen’s Advice Bureau.
    CFLP

  • Anonymous says:

    Hi everyone,
    I too got married islamically to someone who converted to a Muslim. I was abused mentally and physically by this person for over a year, stripped naked, raped and then eventually I stabbed him with a knife. I got cleared by the police, he has stripped me down to absolutely nothing and to this day, he doesn’t leave me alone. I later learned how this man preys on Asian women, lures them into his trap and mentally abuses them using Islam although he’s not a practising Muslim at all. He knows a lot about the religion and uses it to his advantage.
    Just two days ago he has told me he wants to take his fridge, TV, microwave, kettle, toaster, pans after throwing away all my stuff to replace it with his. Baring in mind since the stabbing it’s been 9 months and he’s co-habiting with his girlfriend.
    He currently knows I am struggling for money and I have two boys from a previous marriage.
    I still have our Islamic marriage certificate which was signed and dated by witnesses, with an agreed dowry. I desperately need money to replace the necessities that he’ll be taking away from me. Any help and advice would be greatly appreciated.

  • Lisa says:

    I wanted to no is do u have to get a civil divorce before the Islamic divorce?or doesnt it matter what divorce u get 1st.

  • Kashif says:

    Can u please confirm if some Muslim man already married and want to marry again in uk under U.K law what can he done its compilsary to divorced is first wife ?
    Please confirm

  • Yasmeen says:

    I was married with married man..but that time i was dont know he was married..and his wife is live with him in uk.now i want to go with him and want to live with him.he divoced her in islamic law b4 3 months.but in uk they dont execpt this divoce.now she send a divoce to him b4 one month ago..now she live his house and he live rental house..i am so worried about our marriage.plz guide me what can i do now.i am in pakistan.and after his divoce which visa i can apply..somebody told us u apply fiance visa and again marry in uk then apply to spouse visa..now u advice me plz.

  • Mariam says:

    Hi
    I would like to ask if my devoice is valid. I am
    British citizen and I was married to my husband who is a British citizen too however we were married in Pakistan. We did not get the opportunity to register our marriage in the UK because we separated after a few months because he had another family and children in the UK which I wasn’t aware of and he left with a hand written note of Islamic devoice. I have no idea where he lived or his contact details for a year. Now I have found somebody from Pakistan whom I would Like to get married to and bring to the UK. My devoice papers are done In Pakistan and because of work reasons I could not stay in Pakistan for long therefore I made a power of attorney for my bother to do my paperwork for devoice for me and they are completed. I am now married to my husband from Pakistan however if I bring my husband to the UK will this cause me an Issues ??? Thanks alot